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New York employers and coronavirus liability waivers

As New York businesses and other establishments and entities have emerged from the shutdown from COVID-19, those that employ people face the challenge of keeping their employees as safe as possible in the face of a highly contagious, microscopic virus. One subject of debate across the country is whether an employer can or should require an employee to sign a coronavirus liability waiver that would ban the employee from suing the employer or would remove legal responsibility from the employer should the employee contract COVID-19.

What about New York workers’ compensation laws?

Almost all New York employers are subject to workers’ compensation, which requires an employer to cover medical expenses and wage replacement for work-related injuries and illnesses. In exchange for these automatic benefits – paid without regard to who is at fault for the workplace harm – the employee may not sue the employer for it. So, even if an employee contracted COVID-19 from the workplace and employer was responsible, workers’ comp would likely prevent a lawsuit against the employer with or without a signed liability waiver.

As of this July 2020 writing, the New York legislature has not passed a law that would either automatically cover certain kinds of workers or create a rebuttable presumption that the virus was contracted through work, as some other states have done. However, the New York Workers’ Compensation Board (WCB) issued detailed guidance on these issues.

Enforceability of a liability waiver

In the area of employment, whether a liability waiver is enforceable may turn on principles of contract law. For example, can an employee void a waiver because the employee signed it under economic duress?

Policy considerations

Given the legal uncertainties of coronavirus liability waivers in New York workplaces, certain employers may feel that waivers are not worthwhile, considering that employees may quit if required to sign them. Requiring employees to sign liability waivers could also degrade employee loyalty and the employer’s reputation in the community, which could translate into fewer customers or sales for employers engaged in commerce.

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